F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 16, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-5094
v. (N.D. Oklahoma)
HO M ER PRICE, (D.C. Nos. 05-CV-124-JHP and
02-CR -19-JHP)
Defendant-Appellant.
OR DER
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
Homer Price, a federal prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s order denying his 28 U.S.C. §
2255 petition to vacate, modify, or set aside his conviction and sentence. In his
petition, M r. Price alleged three claims of ineffective assistance of counsel, a
violation of his due process and Sixth Amendment rights articulated in Blakely v.
Washington, 542 U.S. 296 (2004), and Booker v. United States, 543 U.S. 220
(2005), and one claim that his sentence violated his Fifth Amendment right to due
process. For substantially the same reasons set forth by the district court in its
well-reasoned order, we deny M r. Price’s application for a COA and dismiss this
matter.
I. BACKGROUND
A jury convicted M r. Price of one count of possession of a firearm and
amm unition after former conviction of felony, in violation of 18 U.S.C. §§
922(g)(1) and 924(c). The district court sentenced M r. Price to 188 months’
imprisonment, plus five years’ supervised release. W e affirmed M r. Price’s
conviction on direct appeal. United States v. Price, 94 Fed. Appx. 792 (10th Cir.
2004).
In his § 2255 motion to vacate, M r. Price argues five claims: (1) he
received ineffective assistance of counsel during his trial and sentencing process
because counsel failed to investigate or present mitigating evidence in the form of
his medical records, (2) he received ineffective assistance of appellate counsel
when counsel failed to argue that M r. Price’s sentencing deprived him of due
process or violated his Sixth Amendment rights; (3) he received ineffective
assistance of counsel based upon the cumulative effect of alleged trial,
sentencing, and appellate errors; (4) his sentence, which the district court
increased based upon facts not charged in the indictment that were not presented
to a jury, denied him due process of law, and violated his Sixth Amendment
constitutional rights; and (5) his sentence violated his Fifth Amendment right to
due process. The district court dismissed M r. Price’s ineffective assistance of
counsel claims and the challenges to his sentence.
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II. DISCUSSION
In order to obtain a COA, M r. Price must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. Price may make
this showing “by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented were adequate to deserve encouragement to proceed
further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be
debatable even though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that [the] petitioner will not
prevail.” Id. at 338.
Here, for substantially the same reasons set forth in the district court’s
order, we conclude that M r. Price is not entitled to a COA. M r. Price’s
ineffective assistance claims satisfy neither the deficient performance nor the
prejudice prong set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).
W e agree w ith the district court that, notwithstanding a head injury suffered two
years before the alleged offense in this case, none of the medical records M r.
Price submitted indicate he was incompetent to understand the proceedings
against him at trial. Furthermore, M r. Price cannot show prejudice as to his
sentence, because he was sentenced at the low end of the sentencing guidelines
range. The district court’s resolution of this claim is not reasonably debatable.
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As to appellate counsel’s alleged failure to bring a Blakely/Booker
challenge, the district court noted counsel was not ineffective for failure to
predict the future outcome of Blakely and raise it on appeal. United States v.
H arm s, 371 F.3d 1208, 1212 (10th Cir. 2004) (“The Sixth Amendment does not
require counsel for a criminal defendant to be clairvoyant.”). This court affirmed
M r. Price’s conviction on April 13, 2004; the Supreme Court decided Blakely on
June 24, 2004. Even had counsel anticipated that the Court would apply Blakely
to the federal sentencing guidelines in Booker, and had raised this issue in a
petition for certiorari, the petition would have been denied because it was
procedurally barred. Thus, the district court’s conclusion that M r. Price’s
appellate counsel was not ineffective is not reasonably debatable.
As to M r. Price’s third allegation, that he was denied effective assistance of
counsel based upon the cumulative impact of multiple deficience of counsel
during trial, we agree with the district court that, “[h]aving found no errors in
counsel’s performance, cumulative error analysis does not apply in this case.”
Dist. Ct. Order at 9 (filed M ar. 30, 2006).
M r. Price’s fourth contention that his sentence violated his Sixth
Amendment right to due process because the court believed the guidelines were
mandatory also fails. Blakely is not retroactively applicable to cases on collateral
review. United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005). Similarly,
M r. Price’s fifth claim, that his sentence violated his Fifth Amendment due
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process rights also fails because neither Blakely nor Booker is retroactive to
initial petitions on collateral review. Id.; United States v. Bellamy, 411 F.3d
1182, 1186 (10th Cir. 2005). The district court’s resolution of this claim is not
reasonably debatable.
Based on our review of the record on appeal, the district court’s order, and
M r. Price’s submissions to this court, we are not persuaded jurists of reason
would disagree with the district court’s disposition of M r. Price’s § 2255 motion
to vacate. M r. Price is reminded that his request to proceed in forma pauperis
was denied by the district court and he remains obligated for the unpaid balance
of his docket and filing fees for this appeal. Accordingly, we D ENY M r. Price’s
request for a COA and DISM ISS the matter.
Entered for the Court,
Robert H. Henry
Circuit Judge
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